December 10, 1941 In Richards v. Washington Terminal Company, supra, the Court said, at page 554: * Any diminution of the value of the property not directly invaded nor peculiarly affected, but sharing in the common burden of incidental damages arising from the legalized nuisance, is held not to be a "taking" within the constitutional provision. The taking must be permanent. United States v. Lynah, 188 U. S. 445 (1903); United States v. Cress, supra. The taking must be more than a damage. As in the case of United States v. Lynah, supra, at page 472: There have been many cases in which a distinction has been drawn between the taking of property for public uses and a consequential injury to such property, by reason of some public work. * And before recovery can be had under the Tucker Act, 28 U. S. C. A. sec. 41 (20), (24 Stat. 505), there must be an actual or implied agreement to take the land and pay for it. Portsmouth Company v. United States, 260 U. S. 327, 331, 67 L. ed. 287 (1922). There must be an implied agreement on the part of the Government to pay. See Goodman v. United States, supra, in which the Court said at page 502: But if the circumstances show a contemplation by the government that land is or will be taken, or an intention, express or implied, to take the land, then the implied agreement to pay therefor must necessarily follow. In the case of Sanguinetti v. United States, supra, the Court said (pp. 149, 150): It was not shown that the overflow was the direct or necessary result of the structure; nor that it was within the contemplation of or reasonably to be anticipated by the Government. However, again quoting from Goodman v. United States, supra, the Court said (p. 503): On the other hand, there is a long line of authorities to the effect that where an improvement in the river is for the purpose of narrowing the river to create a constricted channel, or to otherwise improve navigation, the damages resulting from such work do not constitute a taking, but are consequential. Northern Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336 (1878); cases cited at top of page 503, 28 F. Supp.) (And In the cases before the Department, it does not appear that there has been a permanent invasion of the land of any of the claimants. The invasion, if any, is intermittent and incidental and one not contemplated by the Government at the time the reservoir was constructed. No intention to take the land, express or implied, has been shown nor can such an intention be implied from the facts submitted and known. It is my opinion that a consideration of all the facts and circumstances does not justify the finding of a taking, either express or implied, in these cases. No basis for recovery under existing law being apparent, there has been no attempt made to survey the reasonableness of the damages claimed or the sufficiency of the evidence submitted in this respect. A careful examination of the record indicates that the damage was not caused by the negligence of a Government officer or employee and therefore that it is not within the provisions of the act of 1922, supra; that the damage was not caused by the operations of a Government officer or employee in the construction, operation or maintenance of an irrigation works and so cannot be paid under the current appropriation act, supra; that there was no actual invasion of land justifying the finding of an implied taking and that there was no implied contract to pay as required to recover under the Tucker Act, supra. The claims therefore should be rejected. Approved: E. K. BURLEW, First Assistant Secretary. ENFORCEMENT POWERS OF COAL MINE INSPECTORS OF Opinion, December 12, 1941 BUREAU OF MINES-COAL MINE INSPECTORS-RIGHT OF ENTRANCE TO MINESREPORTS OF MINE OWNERS INJUNCTION TO ENFORCE. Refusal to admit an inspector of the Bureau of Mines to a coal mine is a violation of the act of May 7, 1941 (55 Stat. 177). If unopposed by physical force, an inspector may enter a coal mine in spite of the opposition of the owner, but the use of force to gain entrance is not justified. Entrance to mines and reports from owners may probably be compelled by injunction. MARGOLD, Solicitor: At a recent conference between representatives of the Bureau of Mines and members of the Solicitor's Office the question was raised as to what enforcement or police powers inspectors of the Bureau of Mines will have under the act of May 7, 1941, in regard to health and safety in coal mines (55 Stat. 177). In particular it was desired to know what representatives of the Bureau of Mines may do to gain entrance to a mine if entrance is refused, and to obtain information as to mine accidents if the furnishing of reports is refused. The relevant powers which the act confers on the Secretary of the Interior, acting through the Bureau of Mines, and the inspectors of the Bureau are few, and may be stated as follows: 1. To make or cause to be made inspections and investigations in coal mines, the products of which regularly enter commerce or the December 12, 1941 operations of which substantially affect commerce, for the purpose of obtaining information relating to health, safety, and accidents, as particularly specified in the act (sections 1 and 2). * 2. For the purpose of making said inspections and investigations, representatives of the Bureau of Mines "** shall be entitled to admission to any coal mine the products of which regularly enter commerce or the operations of which substantially affect com(section 3). merce * * *99 3. To request of owners, lessees, agents, managers, superintendents, or other persons having control or supervision of such coal mines, information concerning accidents (section 5). 4. To cooperate with the official mine inspection or safety agencies of the several States and territories, and, with the consent of the proper authorities thereof, to utilize the services of such agencies in connection with the administration of the act (section 7). 5. To designate other bureaus and offices in the Department of the Interior to cooperate with the Bureau of Mines in the execution of the act (section 7). 66 * * * The investigatory powers conferred on the Department and its representatives necessarily imply correlative duties on the part of owners and their agents. In the case of the power to request information concerning accidents, the act expressly states that the owner or his agent shall furnish *" such information. In respect to the power to enter the mine, the act does not in terms. impose upon the owner or his agents the duty to admit. However, the only penalty imposed by the act is for refusal to admit to the mine, the penalty being that one who so refuses “* shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding $500 or by imprisonment not exceeding 60 days, or by both" (section 4). The way in which these powers on the part of representatives of the Bureau of Mines and the duties on the part of owners and their agents are stated, and the provision or failure to provide for a penalty for violation, have direct bearing on the methods that may be used to enforce the powers and duties. sion * 66 * * * With respect to gaining entrance to the mine, the act provides that representatives of the Bureau shall be entitled to admis* *" and imposes penalties upon anyone 66* * * who refuses to admit * * *them. A physical encounter between an inspector on one side and the owner or his agent on the other is not a necessary element of a violation of the act in regard to entry of the mine. The act is violated when the owner, his agent, or anyone else, by word or act, refuses admission to an inspector. Upon this occurrence the criminal proceedings contemplated by the act may be instituted, and the penalty imposed upon conviction. Of course, the weakness of this proceeding is that it does not afford a summary and certain method of getting into the mine. The penalty provided is comparatively mild, and not such as to inspire much fear of violating the act. The question inevitably arises if entry can be gained in spite of opposition of the owner or his agents. If the threat of criminal prosecution under the act for refusal to admit is deemed to be or is in fact insufficient, two other possibilities remain for gaining summary entrance. In the first place, an inspector, in spite of opposition of the owner or his agents, may enter the mine if he is not physically opposed, and if he can do so without the use of force. As he would be entering under an express statutory privilege or right, he would not be a trespasser upon land. In the Restatement of the Law of Torts, section 211, the rule is stated as follows: A duty or authority imposed or created by legislative enactment carries with it the privilege to enter land in the possession of another for the purpose of performing or exercising such duty or authority in so far as the entry is reasonably necessary to such performance or exercise, if, but only if, all the requirements of the enactment are fulfilled. It may be seen that in entering in spite of the opposition of the owner or his agents, the first care of the inspector must be that he enters strictly in conformance with the power conferred by the statute under which he is working. For instance, the mine must be one that is subject to entry under the terms of the statute; the time and circumstance should be reasonable; the purpose of entry must be to inspect and investigate under the terms of the statute. The foregoing contemplates no physical opposition on the part of the owner or his agents and no necessity for the use of force on the part of the inspector. The problem remains, as to what force, if any, representatives of the Bureau of Mines may use to gain entrance for the purposes of the act. It is believed that representatives of the Bureau would not be justified, in the absence of a court order or writ, in using any force whatever to gain entrance to the mine, and that they will be trespassers if they do so. The rule is stated (Restatement of Torts, section 211, Comment m, p. 534) as follows: Whether a privilege to enter land pursuant to a legislatively created duty or authority carries with it the subsidiary privileges to use force to the person and to break and enter an enclosure, a building or even a dwelling, depends on the provisions of the statute. Many statutory duties or authorities deal with situations in which there is a corresponding common law duty or authority. If so, in the absence of a specific statement in the statute, the fact that there is or is not such a subsidiary privilege attached to the corresponding common law privilege to enter land is of importance in determining whether or not the statutory privilege carries with it such a subsidiary privilege. December 12, 1941 * * * In respect to the foregoing comment, there was no common law duty or authority to enter coal mines to inspect and investigate, and so no possible subsidiary common law privilege to use force or to break and enter enclosures or buildings to accomplish entry. It follows that no right to use force to gain entrance under the terms of the present act can be inferred from anything in the common law. And as this statute does not in terms provide for the use of force, if the right to use it exists at all, it can be only by reason of inference from or construction of some expression in the statute. This statute does not provide much from which to draw any such inference or to make such construction.. The language is that representatives of the Bureau "* shall be entitled to enter any coal mine and provides penalties for refusal of admission. It is hard to find in these words anything more than the creation of a statutory right of entry, without any suggestion or inference of any right of physical enforcement of the power. The language used in the act, "entitled to," is often used with reference to property rights, and even an owner of property, entitled to possession, has no right to enter by force against one who is in possession under a claim of right. It would seem that if it had been intended to confer upon the Bureau of Mines and its inspectors any right to force entrance, this would have been expressed in suitable language in the act. In the case of several other Federal agencies the functions of which involve inspections and investigation, the Federal act under which they work affords the officers a much greater degree of protection than does this health and safety act at hand. In those cases, the Federal statutes impose severe penalties for interfering with the inspection officers in the performance of their official duties. See the following: 8 U. S. C. sec. 152, re immigration officers; 18 U. S. C. 18 U. S. C. 18 U. S. C. sec. 118, re Bureau of Animal Industry; sec. 628. re service of search warrants; 18 U. S. C. secs. 253, 254, re various specified officers. In this health and safety statute for coal mines there is no such Federal provision imposing penalties for interference in general with performance of official duties by representatives of the Bureau of Mines. It is true that for assaults upon inspectors of the Bureau of Mines prosecutions could be instituted in the State courts, but this does not provide so certain and effective a remedy as the Federal statutes above referred to in the case of various other agencies of the Govern ment. It may be seen from the foregoing that the right of inspectors of the Bureau of Mines to force their way into any mine is at best doubt |